Division 42 Governance and Democracy Women's Rights in the Arab world Overview of the status of women in family law with special reference to the influence of Islamic factors Background Published by: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH Postfach 5180, 65726 Eschborn Internet: http://www.gtz.de Commissioned by the: Ministry of Economic Cooperation and Development (BMZ) Concept: Juliane Osterhaus, Bushra A. Barakat Contacts: Christine Brendel, Bushra A. Barakat Telephone: (+49 61 96) 79 4121 Telefax: (+49 61 96) 79 6126 E-mail: [email protected] Web: www.gtz.de/gender Responsible: Jörg Haas Text: Photo: Dr. phil. Anna Würth EPD About the author: Design by: Anna Würth holds a PhD. in Islamic studies and Jeanette Geppert, konzept & design an MA in anthropology. She is an advisor to the www.jeanette-geppert.de German Institute of Human Rights and teaches at the Free University, Berlin. After several years with Printed by: Human Rights Watch and as a guest professor at Klarmann Druck the University of Richmond, she now works as an www.klarmanndruck.de independent consultant in Berlin in the fields of development cooperation and human rights. Unrevised reprint December 2008 Division 42 Governance and Democracy Women's Rights in the Arab world Overview of the status of women in family law with special reference to the influence of Islamic factors Background Table of contents FOREWORD 5 SUMMARY 7 1. ISLAMIC LAW AND ITS MAIN SOURCES 8 2. THE STATUS OF WOMEN IN ISLAMIC LAW 10 3. HISTORICAL BACKGROUND: CODIFICATION OF LAW BY ARAB NATION-STATES 11 3.1 Motives for the codification of Islamic law 11 3.2 The nature of the “modern” family law 11 3.3 Family and the state 12 4. ISLAMIC LAW AND CUSTOMARY LAW 13 5. THE SHARI'A IN CONSTITUTIONS AND LEGISLATION 14 5.1 The Shari’a as a legal source 14 5.2 Constitutional review of laws 14 5.3 Legislative powers 15 6. ACCESS TO THE JUDICIAL SYSTEM 16 7. DISCRIMINATION AGAINST WOMEN IN THE NATIONAL FAMILY LAWS OF SELECT ARAB STATES 18 7.1 Entering into marriage 18 Guardianship Marriages among minors 18 Minimum age of marriage and its legal consequences 19 7.2 Rights within marriage 20 Enforcing marital duties 20 Women and work 20 Marriage contracts 20 7.3 Right to divorce 22 Different kinds of divorce and the legal grounds for divorce 22 Reforming the legal grounds for divorce 22 Repudiation rulings 23 7.4 Right to maintenance after divorce 25 7.5 Rights to custody and guardianship 26 7.6 Right to transfer nationality to the children 27 ANNEXE 29 Useful web sites Sites related to human rights Shadow reports Studies LITERATURE 30 Monographs and articles Background Foreword The Arab Human Development Reports of in Latin America, Asia and Africa that 2002 and 2003 contain substantial evidence contribute towards eradicating legal discri- to prove that the institutional discrimination mination against women and assist women of women is one of the main causes for the in claiming their existing rights. The lessons social and economic problems of the Arab learned from the cooperation with diverse region. The reports call for an improvement partners provide important impulses for the in the social status of women and the further development of approaches and eradication of legal discrimination - in strategies related to international and theory and practice. German development cooperation in terms of democratisation, good governance and However, in current literature on inter- legal reform. national development cooperation there has been neither an up-to-date overview This working paper is the first of a series nor a compilation of facts about the legal of scheduled contributions by the project status of women in the region. This working on "Women's Rights in the Arab World". By paper would like to make a first contribution focusing on formal law, the paper presents towards addressing these lacunae: it only one dimension of the subject. Future discusses the status of women in marriage contributions will focus on legal reality and and family law - a sphere that is of particular practice and spotlight the causes preventing relevance to women - in select Arab women from asserting their existing rights. countries. Reference is also made to the historical context to demonstrate how We are grateful to all colleagues who en- Islamic and colonial legal sources have riched this publication with their comments. influenced domestic legislation in the We especially thank the author Dr. Anna different countries. Würth as well as Bushra Barakat who provided professional support. In 1997, the German Federal Ministry for Economic Cooperation and Development (BMZ) has commissioned the GTZ project "Strengthening Women's Rights". It supports innovative civil-society initiatives Bernd Hoffmann Juliane Osterhaus Head of Division Project Manager 5 Background 6 Zusammenfassung Summary This paper offers an overview of the legal discriminatory legislation in some Arab status of women in select Arab countries. It states with special reference to the status first discusses Islamic law, its main sources, of Islamic law. It addresses the various and the status of women in Islamic law. rights of women: when entering marriage, The codification of law in Arab nation-states within marriage, to divorce, maintenance is described against a brief historical back- after dissolution of marriage, custody, and ground and the paper discusses the the transfer of citizenship to children. This contextual importance of Islamic law and paper lays no claim to presenting the customary law. This is followed by an complete picture. It is instead an attempt to explanation of how difficult it is for women throw light on sections and examples taken to assert their rights because they have from the very complex subject of women's limited access to the judicial system. The rights in the Arab world that are relevant to paper concludes with a description of development cooperation. 7 Islamic law and its main sources 1. Islamic law and its main sources The Arabic term shari'a (literally, the way) Especially since the politicisation of Islam describes the body of all the rulings and in the 1970s, gender relations have been provisions that are binding on legal and central to these debates. As a reaction to religious grounds.1 Scholars, hitherto mainly the failure of familiar models of ideology and men, have derived these rulings from the development, a growing number of people sources of Islam. The foremost sources are in the Arab world are turning to religiously the Quran (the revelation) and the hadith inspired models of a way of life and are or sunna (delivery by the Prophet). Islamic trying to reshape social and political con- jurisprudence (Arabic: fiqh), in turn, is ditions, often with force, to make them more based essentially on the interpretation "authentically" Islamic. In these controversial and understanding of these sources. In debates, the status of the woman and the the course of Islamic history, jurists from choices that she has within the family, at the different schools of law have followed work and in social life become a symbol per stipulated and very detailed methods to se for "westernisation" versus "Islamisation". formulate legally binding norms. Customary The politicisation of Islam has led to societies law and state legislation, important legal and states in the Middle East becoming traditions in all countries with a Muslim more conservative in their values while majority population, were not always Islamic arguments are gaining considerable compatible with Islamic law. ground at all levels. In contemporary western discourse, shari'a is usually equated with Islamic law (in fact, often only with Islamic criminal law). This has distorted and truncated the meaning of shari'a in modern debates where the focus is not only on the origin and validity of legal norms, but also on the shaping of social relations, the political systems and orienta- tion of the individual lifestyle to religious 1 Hence there also exists the concept of a Christian and ethnic concepts. and Jewish shari’a. 8 Islamic law and its main sources Discriminatory interpretations of Islam: a controversy among experts, scholars and activists There are three fundamental stances with regard to the question whether the Quran should be reinterpreted in favour of the woman: 1. Many secular women's organisations denounce this as cultural relativism: as the United Nations Convention on Women's Rights already incorporates internationally binding standards, one should not regress towards Islamic norms that lag far behind these standards. 2. Fundamentalist groups often criticise a "progressive" interpretation of Islamic sources claiming that this is western cultural imperialism and stand by the existing, patriarchally-biased interpretations of Islam. 3. Reform-oriented Muslims along with many academics and experts advocate that the Quran be regarded as a positive resource and an open book that can and should be reinterpreted in the wake of social changes. An example is offered by The Women's Forum for Research and Training (WFRT) in Yemen, the partner organisation of the GTZ project, which has adopted the third position. With support from the project, WFRT is training female multipliers in women-friendly interpretations of the Quran. 9 The status of women in Islamic law 2. The status of women in Islamic law Traditional Islamic law differentiates people Muslim men and women are equal; only according to their sex, status and religion. interpersonal relationships are characterised Therefore, women and men, free persons by inequality in age, status and gender. and slaves, Muslims and non-Muslims all Efforts to justify gender equality on the have different legal status; the dominant basis of Islamic arguments refer, among and privileged legal position is reserved for other things, to this spiritual equality and the free Muslim man.